130. As indicated, the State opened an investigation ex officio on October 7, 2011, after
the case had been submitted to the Court (supra para. 81). In the context of this
investigation, in addition to the actions relating to formalizing the initiation and processing,
and determination of the competent authorities, the following actions aimed at investigating
the facts were decided: the issue of notes to gather information from different entities; the
reception of information provided by the Archbishopric of Santiago, the Sociedad Hipódromo
Chile S. A., and the Border Control Department of the National Headquarters of Aliens'
Affairs and International Police; the summoning to testify of one person who was
presumably responsible – identified during the investigation; the issue of arrest warrants for
this person, owing to his failure to appear to testify; inquiries into the domicile of the said
person presumably responsible, as well as into his exits from and entries into the country;
and summoning of a witness to testify and subsequent reception of his testimony.
Furthermore, the domestic case file contains decisions made in April 2013 for notes to be
sent to Interpol and the Chilean Gendarmería; the former with regard to the whereabouts of
the person presumably responsible who had been identified, and the latter regarding the
“political background, and information on the detention, etc. with regard to [Mr.] García
Lucero” (supra paras. 84, 87, 88, 92 to 95 and 98 to 101).
131. It is worth noting that, contrary to the mention of the Commission and the
representatives in their observations and final written arguments, respectively, that the
investigation was “on hold” or was “unduly delayed” owing to “problems of competence”
(supra paras. 109 and 111), the latest actions that appear in the domestic case file,
according to documents provided to the Court by the State with its final written arguments
on April 21, 2013, are decisions issued on April 2 and 3, 2013, to take specific investigative
measures (supra paras. 100 and 101). This reveals that, according to the evidence provided
to the Court, the investigation is underway. The “problems of competence” have not
prevented this or the implementation of the investigative measures described above.
132. The representatives also related the alleged lack of diligence to the use of certain
legal principles (supra para. 114). This last aspect is related to aspects that will be analyzed
below concerning the alleged legal obstacles to access to justice (infra, paras. 149 to 161).
Other arguments relate to the alleged shortcomings of some of the domestic authorities as
regards their powers, experience and capabilities (supra paras. 111 to 113). Regarding
these last arguments, the Court does not find it in order to evaluate them because they are
general and do not lead to the identification of specific aspects in which the supposed
shortcomings had a negative effect on the investigation. 145
133. However, in this case, the arguments of the parties and the Commission and the
evidence that exists do not reveal that the omission of some measures that, in the
representatives’ opinion, would be advisable: certain police inquiries, the “association” of the
investigation with certain criminal proceedings, and the questioning of a decision concerning
competence (supra para. 115), constitute per se shortcomings to diligence. Thus, the Court
finds that, in principle, it is for the domestic authorities to determine the appropriateness of
specific or precise measures in the context of the investigation.
134. In addition, in the context of assessing the State’s actions during the investigation of
the illegal act, different aspects must be considered related to the participation of Mr. García
Lucero in the proceedings. In this regard, the Court observes that, in his testimony by
145
The Court also notes that the witness José Antonio Ricardi Romero stated that “the Public Legal Assistance
Service is an entity that is amply qualified to exercise […] judicial representation,” and that it is “the proper
institution to assume the representation of persons who do not have the financial resources to pay for defense
counsel or to defend themselves in cases such as that of [Mr.] García Lucero” (Testimonial statement of José
Antonio Ricardi Romero provided by affidavit (merits file, tome II, fs. 820 to 825).
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